Dilip Mehena vs The State of West Bengal & Ors.

In Re: CAN 5492 of 2017

Let the affidavit of service filed in Court today on behalf of the

applicant/appellant indicating effective service of notice upon the respondents

including the private respondents be taken on record.

After considering the submission made by the learned advocate for the

appellant/applicant and upon perusing the instant application, it appears that

sufficient cause has been shown to explain the delay in filing of the appeal and as

such, the delay is condoned.

The application for condonation of delay, being CAN 5492 of 2017, is

accordingly allowed.

In Re: CAN 5502 of 2017

This is an application seeking leave to appeal taken out by one Dilip

Mehena in respect of an order dated 28th June, 2012, passed by the learned

Single Judge in W. P. 12204 (W) of 2012 ( Ajoy Kumar Mondal & Anr. vs. State of

West Bengal & Ors .).

Admittedly, the applicant is a third party seeking to assert his right

consequent upon the order passed by the Sub-Divisional Magistrate, Rampurhat,

Birbhum, in terms of his memo dated 31st March, 2017.

The subject matter of controversy surrounding the instant matter was

carried right upto the Supreme Court by Paschim Banga Rajya Bhumijibi Sangha

& another in SLP (Civil) No.1416 of 1997. The Supreme Court by an order dated

24th November, 2003, had directed the authorities of the State to ensure that no

third party interests were created or such third parties be inducted or allowed to

enter upon and squat on the properties pending disposal of the appeals

notwithstanding the vesting orders that may be passed and mutation that may

be effected. For implementation of the said order of the Supreme Court, Ajoy

Kumar Mandal and another, being the writ petitioners in W. P. 12204 (W) of

2012, filed the writ petition, which ultimately resulted in the impugned order

dated 28th June, 2012.

During the course of argument, the learned advocate appearing on behalf

of the applicant has referred to a subsequent order passed by the Supreme Court

on 12th December, 2005, in the same SLP, where a direction was issued upon the

respondents not to take any coercive steps. According to learned advocate for the

applicant, the concerned authority of the State by issuing the order dated 31st

March, 2017, has proceeded to take coercive steps against his client.

We are of the view that in the facts and circumstances of the instant case,

the issue as sought to be raised by the applicant cannot be a subject matter in

the appeal preferred by the applicant against the judgment and order dated 28th

June, 2012. A bare perusal of the impugned judgment and order reveals that the

direction of the learned Single Judge upon the District Magistrate, Birbhum and

the Superintendent of Police, Birbhum, was merely following the order of the

Supreme Court dated 24th November, 2003. Admittedly, the applicant is not a

party in the proceeding pending before the Supreme Court. As such, there is no

scope to interfere with the impugned judgment and order dated 28th June, 2012,

passed by the learned Single Judge in W. P. 12204 (W) of 2012.

In such circumstances, the application for leave to appeal along with the

application for stay and the appeal are liable to be dismissed and stand

accordingly dismissed.

Urgent photostat certified copy of this order, if applied for, be given to the

learned advocates for the parties.